As filed with the Securities and Exchange Commission on February 29, 2008

Registration No. 333-      

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-8

NUVASIVE, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware		33-0768598
(State or Other Jurisdiction of		(I.R.S. Employer
Incorporation or Organization)		Identification No.)

4545 Towne Centre Court, San Diego, CA 92121
(Address of Principal Executive Offices)

2004 EQUITY INCENTIVE PLAN
2004 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)

Alexis V. Lukianov
Chairman, Chief Executive Officer
NuVasive, Inc.
4545 Towne Centre Court
San Diego, CA 92121
(Name and Address of Agent For Service)

(858) 909-1800
(Telephone Number, Including Area Code, of Agent For Service)

Proposed Maximum

Proposed Maximum

Amount to be

Offering Price per

Aggregate Offering

Amount of

Title of Securities to be Registered

Registered (1)

Share (4)

Price (4)

Registration Fee

Common Stock $0.001 par value per share, to be issued pursuant to the 2004 Equity Incentive Plan

2,316,054(2)

$38.99

$90,302,945

$3,548.91

Common Stock $0.001 par value per share, to be issued pursuant to the 2004 Employee Stock Purchase Plan

579, 788(3)

$38.99

$22,605,934

$888.41

Aggregate Registration Fee:

$4,437.32

 

 

EXPLANATORY NOTE

This registration statement is being filed for the purpose of registering additional securities of the same class as other securities for which a registration statement of NuVasive, Inc. (the “Registrant”) on Form S-8 relating to the same employee benefit plans are effective. In accordance with General Instruction E to Form S-8, the contents of the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on June 16, 2004 (File No. 333-116546) are hereby incorporated by reference.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference

     The following documents filed with the Commission by the Registrant are incorporated by reference in this registration statement:

     (a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007, as filed on February 29, 2008;

     (b) The Registrant’s Current Reports on Form 8-K, as filed on January 11, 2008 and January 31, 2008; and

     (c) The description of the Common Stock of the Registrant contained in the Registration Statement on Form 8-A (No. 000-50744) filed with the Commission on May 5, 2004, pursuant to Section 12 of the Exchange Act of 1934 (the “Exchange Act”), and in any report filed for the purpose of amending such description.

     All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all of the shares of common stock offered under this registration statement have been sold or which deregisters all of such shares then remaining unsold, are incorporated by reference in this registration statement and are a part hereof from the date of the filing of such documents, except as to any portion of any future annual, quarterly or current report or document that is not deemed filed with the Commission. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4. Description of Securities

     Not applicable.

Item 5. Interests of Named Experts and Counsel

     Not applicable.

Item 6. Indemnification of Directors and Officers

     Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification

under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the “Securities Act”).

     As permitted by the Delaware General Corporation Law, the Registrant’s certificate of incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases) or (4) for any transaction from which the director derived an improper personal benefit.

     As permitted by the Delaware General Corporation Law, the Registrant’s bylaws provide that (1) it is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions, (2) the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law, (3) the Registrant is required to advance expenses, as incurred, to our directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions and (4) the rights conferred in the Registrant’s bylaws are not exclusive.

     The Registrant has entered into indemnification agreements with each of its directors and executive officers to give such directors and officers additional contractual assurances regarding the scope of the indemnification set forth in our certificate of incorporation and to provide additional procedural protections. The Registrant also intends to enter into indemnification agreements with any new directors and executive officers in the future. At present, there is no pending litigation or proceeding involving any of the Registrant’s directors, officers, employees, or agents where indemnification by us will be required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for such indemnification.

     The indemnification provisions in the Registrant’s certificate of incorporation, the Registrant’s bylaws and the indemnification agreements entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.

     The Registrant has obtained liability insurance for its officers and directors.

Item 7. Exemption from Registration Claimed

     Not Applicable.

Item 8. Exhibits

Exhibit No.		Description
4.1(1)		Restated Certificate of Incorporation
4.2(1)		Restated Bylaws
4.3(2)		Second Amended and Restated Investors’ Rights Agreement, dated July 11, 2002, by and among NuVasive, Inc. and the other parties named therein
4.4(2)		Amendment No. 1 to Second Amended and Restated Investors’ Rights Agreement, dated June 19, 2003, by and among NuVasive, Inc. and the other parties named therein
4.5(2)		Amendment No. 2 to Second Amended and Restated Investors’ Rights Agreement, dated February 5, 2004, by and among NuVasive, Inc. and the other parties named therein
4.6(3)		Registration Rights Agreement, dated as of August 4, 2005, between NuVasive, Inc. and Pearsalls Limited
4.7(4)		Registration Rights Agreement Termination Agreement, dated as of September 26, 2006, between NuVasive, Inc. and Pearsalls Limited
4.8(5)		Specimen Common Stock Certificate
5.1		Opinion of Heller Ehrman LLP
10.1(6)#		2004 Equity Incentive Plan
10.2(6)#		Form of Stock Option Award Notice under 2004 Equity Incentive Plan
10.3(6)#		Form of Option Exercise and Stock Purchase Agreement under 2004 Equity Incentive Plan
10.4(6)#		Form of Restricted Stock Grant Notice and Restricted Stock Agreement under 2004 Equity Incentive Plan
10.5(6)#		Form of Restricted Stock Unit Award Agreement under 2004 Equity Incentive Plan
10.6(6)#		2004 Employee Stock Purchase Plan
23.1		Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
23.2		Consent of Heller Ehrman LLP (filed as part of Exhibit 5.1)
24		Power of Attorney (included on the signature page to this registration statement)

Item 9. Undertakings

     The undersigned Registrant hereby undertakes:

     (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

     (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);

     (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

     (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

Provided, however, that paragraphs (a)(i) and (a)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.

     (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

     The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on this 29^th day of February, 2008.

POWER OF ATTORNEY

     We, the undersigned directors and/or officers of NuVasive, Inc. (the “Registrant”), hereby severally constitute and appoint Alexis V. Lukianov, Chairman and Chief Executive Officer and Kevin C. O’Boyle, Executive Vice President, Finance and Chief Financial Officer, and each of them individually, with full powers of substitution and resubstitution, our true and lawful attorneys, with full powers to them and each of them to sign for us, in our names and in the capacities indicated below, the Registration Statement on Form S-8 filed with the SEC, and any and all amendments to said Registration Statement (including post-effective amendments), and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 in connection with the registration under the Securities Act of 1933 of the Registrant’s equity securities, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.

     Pursuant to the requirements of the Securities Act of 1933 this registration statement has been signed by the following persons in the capacities indicated on February 29, 2008:

Signature		Title(s)
/s/ Alexis V. Lukianov   Alexis V. Lukianov		Chairman, Chief Executive Officer, and Director (Principal Executive Officer)
/s/ Kevin C. O’Boyle   Kevin C. O’Boyle		Executive Vice President and Chief Financial Officer (Principal Financial and Accounting officer)
/s/ Jack R. Blair   Jack R. Blair		Director
/s/ James C. Blair   James C. Blair		Director
/s/ Peter C. Farrell   Peter C. Farrell		Director
/s/ Robert J. Hunt   Robert J. Hunt		Director
/s/ Lesley H. Howe   Lesley H. Howe		Director
/s/ Eileen M. More   Eileen M. More		Director
/s/ Hansen Yuan   Hansen Yuan		Director

INDEX TO EXHIBITS

Exhibit No.		Description
4.1(1)		Restated Certificate of Incorporation
4.2(1)		Restated Bylaws
4.3(2)		Second Amended and Restated Investors’ Rights Agreement, dated July 11, 2002, by and among NuVasive, Inc. and the other parties named therein
4.4(2)		Amendment No. 1 to Second Amended and Restated Investors’ Rights Agreement, dated June 19, 2003, by and among NuVasive, Inc. and the other parties named therein
4.5(2)		Amendment No. 2 to Second Amended and Restated Investors’ Rights Agreement, dated February 5, 2004, by and among NuVasive, Inc. and the other parties named therein
4.6(3)		Registration Rights Agreement, dated as of August 4, 2005, between NuVasive, Inc. and Pearsalls Limited
4.7(4)		Registration Rights Agreement Termination Agreement, dated as of September 26, 2006, between NuVasive, Inc. and Pearsalls Limited
4.8(5)		Specimen Common Stock Certificate
5.1		Opinion of Heller Ehrman LLP
10.1(6)#		2004 Equity Incentive Plan
10.2(6)#		Form of Stock Option Award Notice under 2004 Equity Incentive Plan
10.3(6)#		Form of Option Exercise and Stock Purchase Agreement under 2004 Equity Incentive Plan
10.4(6)#		Form of Restricted Stock Grant Notice and Restricted Stock Agreement under 2004 Equity Incentive Plan
10.5(6)#		Form of Restricted Stock Unit Award Agreement under 2004 Equity Incentive Plan
10.6(6)#		2004 Employee Stock Purchase Plan
23.1		Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
23.2		Consent of Heller Ehrman LLP (filed as part of Exhibit 5.1)
24		Power of Attorney (included on the signature page to this registration statement)